The test for “Testamentary Capacity”

This is a review of the law as it pertains to “testamentary capacity”.  The test for testamentary capacity is reviewed in instances when a last will and testament of a party is being challenged.  Arguments may be raised that the person who prepared the will did not have the capacity to do so due to mental capacity and/or lack of cognitive function and therefore the Will is invalid.

In Nykoryak v. Anderson, 2017 BCSC 1800 the Defendant applies by Summary Trial for an Order that the Last Will and Testament of “Ivan” is valid. The law is highlighted as it pertains to the test for testamentary capacity:

The Law

[17]         The test for testamentary capacity was recently commented upon by this court in Bull Estate v. Bull, 2015 BCSC 136, at paras. 114 to 117:

[114]    The test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his/her ability to manage other aspects of his/her affairs is impaired.

[115]    Simply having an imperfect or impaired memory does not in of itself absent testamentary capacity unless it is so great as to leave no disposing memory: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549. A disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking of existing dispositions and the like …” (Moore v. Drummond, 2012 BCSC 1702 at para. 34).

[116]    The testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his/her property of which he/she is disposing: Allart Estate v. Allart, 2014 BCSC 2211 at para. 30; Leung at para. 27 and Laszlo v. Lawton, 2013 BCSC 305 at para. 158.

[117]    Because testamentary capacity is a legal question and not a medical question, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity: Leung at para. 62 and Laszlo at para. 190.

[18]         The Ontario courts agree.  In the very recent case of Birtzu v. McCron, 2017 ONSC 1420, Justice Bloom, at the beginning of para. 40, said:

[40]      Justice Corbett in Johnson v. Huchkewich, [2010] O.J. No. 4586 (Sup Ct) at paras. 34, 35, and 46 elaborated on the effect of mental disorder on testamentary capacity:

[34]      The applicant notes that testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney.  I agree.  This does not mean the test is “higher” for testamentary capacity; rather, it is different.  Should this point need illustration, none better can be found than Justice Stach’s thoughtful discussion in Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304.  Justice Stach upheld a will made by an 80 year old testator who had been found incapable of caring for her own person or for her own property. The testator was cared for by a niece, under an agreement with the Public Guardian and Trustee. In coming to this conclusion, Justice Stach found:

The requirements for a testator to have a “sound disposing mind” in order to make a valid will include the following:

·         The testator must understand the nature and effect of a will;

·         The testator must recollect the nature and extent of her property;

·         The testator must understand the extent of what she is giving under the will;

·         The testator must remember the persons she might be expected to benefit under her will;

·         The testator, where applicable, must understand the nature of the claims that may be made by a person she is excluding from the will.

[35]      Isolated memory or other cognitive deficits do not establish lack of testamentary capacity:

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property he was bequeathing, the manner of distributing it and the objects of his or her bounty.

[46]      Care must be taken in reading the physicians’ clinical notes or in interpreting their diagnoses.  Diagnosing someone as having “dementia” does not mean the person is “demented”.  Diagnosing someone as having Alzheimer’s does not mean the person lacks capacity (though it may foretell a loss of capacity if the disease progresses as expected).  To leap from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning. I reject this line of argument.

In this case, the following factors were considered:

·         Ivan was 93 years old and provided instructions of a new will

·         Independent legal advice was sought due to Ivan’s daughter providing care to him, and was also being included in the new Will, and due to the 3 children offering “help” or “advice” during the drafting of the will may have created arguments that there was “undue influence” by the 3 children.

·         Counsel was of the opinion that Ivan was mentally competent and had testamentary capacity

·         Ivan understood the need for independent legal advice and would make an appointment to see me.

·         He demonstrated that he had the knowledge and understanding of the following:

(a)        that a Will gave directions to a trusted person to deal with the assets he owned at his death and to whom those assets should be given;

(b)        he knew what assets he owned and that he had no debts;

(c)        his ability to give his assets was governed by the need to recognize that his children needed to receive a portion of his estate

(d)        his house would be sold and the sale proceeds, together with his bank account, would be divided and transferred as he directed.

·         Ivan died on March 24, 2015. 

·         Medical opinion in the form of an expert report dated April 25, 2017 that, although Ivan had some underlying cognitive issues at the time he executed his January 13, 2015 will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time. 


·         There is sufficient evidence before the court to permit a finding that Ivan had testamentary capacity at the time and that the order sought should go.

The Court found that Ivan had executed his will on January 13, 2015, he had the testamentary capacity to do so.  The defendants are entitled to an order that the January 13, 2015 will is valid.

See Disclaimer in About Page